a blog about sexuality, gender, law and culture

16 posts from November 2009

November 23, 2009

The custody dispute over Isabella Miller-Jenkins is the longest running and most notorious dispute between former same-sex partners over a child they planned for and raised together. You can read much of the background in a February 2007 Washington Post Magazine article, and the GLAD website has more recent updates.

Here are the barebones: Janet Jenkins and Lisa Miller were partners, living in Virginia, when they travelled to Vermont in 2000 and entered a civil union. Their daughter, Isabella, was born in 2002 after Lisa was inseminated by donor semen, and a few months later the family moved to Vermont. A year later, the couple split up, and Lisa moved back to Virginia with Isabella. She filed in Vermont to dissolve the civil union, and, in June 2004, the court granted custody of Isabella to Lisa with visitation rights to Janet. In July 2004, Lisa, who is no longer a lesbian, filed an action in Virginia seeking a ruling that she was Isabella’s only parent. She argued that Virginia should not recognize Janet as a parent because Virginia does not recognize a legal status for same-sex couples and Janet’s status derived from the civil union. Lisa lost, not because Virginia likes lesbian parents, but because only one state can have the right to decide the custody of any given child, and Vermont had that right with respect to Isabella.

The Vermont court held a trial on Isabella’s custody in April 2007. The court found that the decision on custody was a “close case,” but awarded custody to Lisa because Isabella was living with her in a stable environment. The court ordered visitation for Janet, including a specific schedule to reintroduce the contact that Lisa had blocked. Lisa has litigated the case through the trial and appellate courts of Vermont and Virginia for five years, losing in every instance. The Virginia courts have consistently ruled that Virginia respects the Vermont orders. Lisa is represented by Liberty Counsel, which makes a point of arguing for biological gay and lesbian parents against the nonbiological parents. Lisa has not obeyed the Vermont court orders.

Well, last Friday, the trial judge in Vermont transferred custody of Isabella to Janet. Here’s a newspaper account, but the ruling itself is not available online. The court handled the case like any other dispute between two parents, and the deciding factor was Lisa’s undermining of Janet’s relationship with Isabella. The harm from that, the judge ruled, would be worse than the short-term harm from Isabella’s relocation. The judge found that Janet would not undermine Lisa’s relationship with Isabella. Last Friday’s order follows an August court hearing at which Lisa appeared only through counsel.

The court spelled out in detail every court order that Lisa had violated, contempt of court findings, and every date there was court-ordered visitation which Lisa failed to provide. After some sporadic compliance in 2007, there were about 24 hours of parent-child contact in 2008 and that many so far in 2009. At the April 2007 trial, Lisa had testified that she would comply with the court’s visitation orders.

The judge also found that Lisa interfered with visits by Janet’s parents, who live in Virginia, and that she asked them not to refer to themselves as “Mom-Mom” and “Pop-Pop” to Isabella. (Isabella’s middle name is Ruth, after Janet’s mother). In addition, Lisa changed Isabella’s name to eliminate “Jenkins” without any notice to Janet.

The judge reviewed the legal standard very carefully, noting that the change of custody is not and cannot be for the purpose of punishing Lisa. The court found that Lisa’s willful and calculated non-compliance with the visitation orders was a significant change in circumstances. The court also noted the warning to Lisa in January 2009 that non-compliance could lead to a change in custody. At that hearing, Lisa said she would comply with the court orders. The court order continues:

“Ms. Miller has proven this testimony to be wholly untrue; she has willfully disobeyed every subsequent Court order regarding visitation and there has not been parent-child contact…since that date….The Court finds that it is Ms. Miller’s intent to cease all parent-child contact between Ms. Jenkins and IMJ.”

The judge also found that “Ms. Miller’s non-compliance with court orders and willingness to provide false promises under oath, cast doubt upon her ability to provide proper guidance for IMJ.”

After finding the significant change in circumstances, the court considered each of the factors necessary to determining Isabella’s best interests. The court found that any short-term difficulties the child would experience with the change of home, school, and community would not cause great harm; that Lisa’s alienation of Isabella from Janet and Janet’s parents was more harmful; and that therefore a change in custody was appropriate.

There have been many other acrimonious disputes between mothers who are former partners, but this stands out because the judge is insisting on adherence to court orders made in the child’s best interests. In other cases where the mother with custody has refused to comply with a court order, judges have been too quick to rule that there is no remedy the court can order. I think this is often because the court thinks of the visitation as an order for contact between the child and a non-parent, and in the end the court just doesn't think it all that important to enforce the order. The judge in Miller-Jenkins, however, recognizes that the child has two parents and is assessing both the law and the child's interests with that in mind.

The order sets a transfer date of January 1, 2010, at the home of Janet’s parents in Virginia. I’m not holding my breath. Janet is still litigating in Virginia, and I’m thinking that she is essentially counting on the Virginia authorities not to enforce this order. So far she’s been wrong on that.

The issues are now joined in Gill v. OPM, the GLAD case challenging the constitutionality of DoMA. Unlike the Perry case in California, the decision in Gill will have no effect on state marriage laws. The plaintiffs are same-sex couples or surviving spouses in Massachusetts, and are arguing that the denial of federal benefits due them is unconstitutional.

The most important legal issue in the case is the standard of review, the question of how stringently a court will examine the reasonableness of a law that distinguishes between persons based on, in this case, sexual orientation. There is no federal court decision on the books that adopts a heightened level of scrutiny in an Equal Protection Clause analysis of sex/o classifications. The plaintiffs are also arguing that the denial of federal benefits also infringes their due process/liberty-based right to maintain family relationships.

In its brief filed two months ago, the Obama Justice Department made its third attempt to defend DoMA without setting off a firestorm of protest from lgbt groups. The most significant aspects of the latest DoJ brief are what isn't there: the pieces of argument made in an earlier brief filed in a California case. Noxious arguments that discouraging same-sex marriage promoted the interests of children (which DoJ has now specifically disavowed) and that DoMA is justified by the government's interest in preserving scarce resources (ie benefits) and in not using tax funds raised in states that don't recognize same-sex marriages for same-sex couple benefits -- these three assertions have fallen by the wayside.

What DoJ was not willing to do, however, was to change its argument about the correct standard of review. DoJ asserts that the traditional, highly deferential form of rational basis review applies to sex/o classifications. Under this standard, the challenged law is entitled to a strong presumption of constitutionality; there can be a very loose, inexact fit between the purpose of the law and the means used to achieve it; the court may hypothesize possible purposes that Congress may have had; and the law will be upheld if any conceivable set of facts can provide a rational basis for it.

What everyone knows but DoJ does not acknowledge is that the Supreme Court did not use this traditional approach to rational basis review in either Romer or Lawrence. If it had, it would not have reached the results that it did. Unfortunately, the Court also did not identify which standard it was using, leaving lower courts open to essentially limiting the impact of those two decisions to only cases with close-to-identical facts, which will arise only rarely.

The plaintiffs' brief in Gill argues for heightened scrutiny or, alternatively, that DoMA fails to satisfy even the most deferential form of rational basis review. I don't know what the district court will do, but I think there is an excellent chance that plaintiffs will win before the Court of Appeals for the 1st Circuit, possibly using the standard proposed by Justice O'Connor in her concurrence in Lawrence, which is basically heightened rational basis when there are signs that the challenged law was based on animus toward a group. DoMA certainly fits the bill.

Whoever wins on appeal, the other side will seek review in the Supreme Court. Timing is completely impossible to predict, but it seems likely that this case will reach the Supreme Court around 2011 or 2012. And of course there is no way to know exactly who will be on the Court at that time. But it sure looks possible that this case, too, will effectively be decided by Justice Kennedy.

November 19, 2009

Governments force transgender people to disclose that they are
transgender all the time. They make us carry around little pieces of
paper and plastic with our birth-assigned sex listed on them, just
begging any police officer, bank teller, customs official, airline
agent or the like to ask just what are you anyway? They
keep that old sex designation in computer files – your driving record,
your Social Security record, Medicare record – that get shared here and
there. They make us appear in open court, or take out an ad in the
newspaper, to announce that we’re changing out name from Kate to Kevin,
or from Kevin to Kate. They say this is necessary for “accuracy” and
“fraud prevention.” These government systems very seldom recognize the
very real dangers of the official outing of trans people in so many
areas of our lives – the dangers not only of embarrassment,
discrimination and harassment, but the very real danger of violence
when we are outed against our will to untold numbers of strangers. So
it was refreshing recently to see one government body – namely a court
in Westchester County, New York – show a genuine recognition of these
dangers.

State courts hear thousands upon thousands of
petitions each year from individuals seeking to change their names.
These petitions are usually granted perfunctorily, and very rarely
result in written opinions, let alone published ones. Except, it seems,
when they are filed in New York, and by a transgender person. Since
1968, I’m aware of at least at least seven New York published court
opinions dealing solely with a transgender person’s name-change
petition. Over the years transgender New Yorkers have fought to get
courts to apply the name-change statute fairly to them. In 2003 a trans
woman won a decision that, contrary to earlier opinions, proof of a
surgical procedure was not required for her name change. Earlier this
year a young trans man won his case on appeal, repudiating dozens of
cases in which judges had required clinical documentation of a person’s
gender identity for a name change.

Make that eight, with a
ruling from the Supreme Court in Westchester County on November 10. In
this case, another young trans man petitioned for an exception to the
standard New York practice of publishing a notice of the name change in
an area newspaper. Many jurisdictions have such a requirement, and only
some of them provide for a discretionary exception. Past petitioners in
New York had gotten such an exception because they were victims of
domestic violence. In this case, the court pointed to numerous reports
indicating the high rates of bias-motivated violence against
transgender people, and to the recently passed Hate Crimes Prevention
Act. The judge concluded that “while petitioner did not, and hopefully
could not, cite a personal experience of violence or crime against him
based on his gender identity, he has made a compelling argument as to
why, at the age of twenty, he has a right to feel threatened for his
personal safety in the event his transgender status is made public.”
Accordingly, the judge granted the exemption, made the name change
immediately, and ordered that the court records be sealed. The case is In re E.P.L., --- N.Y.S.2d ----, 11/16/2009 N.Y. L.J. 40, 2009 WL 3764453 (N.Y. Sup. Ct. Westchester Co. Nov. 10, 2009).

This is not a binding legal precedent, and it doesn’t speak directly to
trans people’s issues with passports, Social Security records, and on
and on. But it does reflect a rare official recognition that
government-mandated outing is dangerous for trans people. And that’s a
start.

November 14, 2009

...Although many have attacked the Amendment as a policy matter, the
constitutional arguments against it have been underplayed. That is a
shame, because under any reasonable reading of the Constitution, the
Stupak Amendment is unconstitutional: Indeed, it violates three
different constitutional principles.

How the Stupak Amendment Violates The Establishment Clause

First, the Amendment violates the Constitution's separation of church
and state. The anti-abortion movement is plainly religious in
motivation, and its lobbyists and spokespersons represent religious
groups, as is illustrated by the fact that the most visible lobbyists
in the Stupak Amendment's favor have been the Catholic Bishops. This is
a brazen and frank attempt to impose a minority's religious worldview
on the entirety of American healthcare. (A majority of Americans have
favored a woman's right to choose for many years.) There is no secular
purpose for the extension of the Hyde Amendment to all private health
insurance plans as well. Accordingly, whatever secular purpose might be
devised by those trying to defend the Stupak Amendment in court would
be a sham purpose, intended to cover the frankly religious pandering
the Amendment represents.

One of the clearest
Establishment Clause principles is that the government may not impose a
certain group's religious beliefs on those with different beliefs. The
principle was articulated by the framer of the First Amendment, James
Madison, in his important work "Memorial and Remonstrance,"
and it has been a mainstay of Establishment Clause doctrine. The Stupak
Amendment violates this principle by imposing on the entire country a
religious worldview that millions of Americans do not share. Moreover,
this imposition of religious belief in the private sphere is in the
context of healthcare, which every American needs.

How the Stupak Amendment Violates The Equal Protection Clause

The
Stupak Amendment also discriminates on the basis of gender. Only women
have to deal with the difficult question of abortion. Conspicuously
missing are parallel exemptions barring funding for Viagra, or for,
say, prostate surgery treatments, which can leave a man sterile and
therefore operate as a birth control measure.

In
addition, the exemption (the purpose of which is, again, obviously a
religious one) does not serve any medical end, when serving medical
ends is presumably the overall and most important purpose of the Health
Care Reform Act. If health is truly to be served, then refusing to
permit women to obtain even private health insurance that covers
unplanned pregnancies, or pregnancies involving fetuses with fatal
abnormalities, is not just discriminatory, but outright irrational.

How the Stupak Amendment Violates Substantive Due Process and Privacy Rights

Finally, the Stupak Amendment attempts to curtail -- across the board – the privacy rights that Roe v. Wade
and its progeny secured for women. While other restrictions on abortion
(including the Hyde Amendment) have been upheld by the Supreme Court,
this is a far more expansive and repressive move against women, and it
surely institutes an undue burden on a woman's right to obtain an
abortion in consultation with her doctor. Although it is not clear
precisely where the boundary line lies, it is very clear that this move
transgresses any reasonable interpretation of the line the Court's
cases draw.

The Stupak Amendment is also a harbinger of
future constitutional violations, for it erects a slippery slope of
top-down control of the spectrum of healthcare options. Abortion is
surely just the first foray of the religious lobbyists' battle to take
away Americans' right to choose among the full panoply of healthcare
options. Attempts to control and halt the funding of both emergency and
ordinary contraception surely are not far behind, for such attempts are
part of the very same politico-religious platform that includes the
Stupak Amendment. There is no more obvious violation of Griswold v. Connecticut
– which established that laws prohibiting contraception are
unconstitutional under the Court's right-of-privacy doctrine -- than
for the federal government to reduce the affordability and, therefore,
the availability of contraceptives for all Americans.

Conservative
Senators who are pandering to religious interests (and/or simply
imposing their own religious beliefs on the country) have been quoted
recently as saying that they will not permit the Health Care Reform Act
to backtrack on abortion issues. But backtracking is a misleading
description of what the religious lobbyists are seeking. The truth,
instead, is that the Stupak Amendment is a far reach beyond the already
repressive Hyde Amendment, and that the advent of the federalization of
healthcare is giving anti-abortion religious believers a one-stop
lobbying opportunity on an issue that they were previously having to
address on a state-by-state basis.

In sum, if the
millions of Americans who believe in choice do not act quickly and in a
concerted fashion, then we will have a historic rollback of women's
liberties. That would be a true disaster, for not only is the Stupak
Amendment repressive and regressive, but it also violates
constitutional rights.

November 13, 2009

A cert petition that has been lingering before the Supreme Court since last summer raises the question of whether a Christian student group's constitutional rights were violated when a public law school refused to grant it official status because the group excluded gay and non-Christian students in violation of the school's non-discrimination policy. Clearly, someone on the Court is interested in granting cert: the case has been on the Court's conference calendar five times (counting today), but still no decision on cert has been announced. This week, the clerk of the Court sent a letter to the Ninth Circuit clerk's office requesting that the complete record in the case be transferred to the Supreme Court, a step that is normally taken only after cert is granted.

If the Court does add Christian Legal Society v. Martinez (No. 08-1371) to its docket, the debate over the conflict between religious liberty and anti-discrimination law will jump to the top of the list of important constitutional law issues related to sexual orientation. The decision could set the terms for what is increasingly the central philosophical question in lgbt rights law: the extent to which religious entities (or even individuals) should be exempt from civil rights protections for sexual orientation. (Additional background here)

If any decision is reached today on granting cert, it will be announced on Monday. Given that there is little chance that the Justices have fully reviewed the lower court documents yet, however, the case may well be rescheduled for its sixth time on the conference calendar. The Court's next conference is November 24.

November 12, 2009

The current issue of Latina magazine contains a feature on the personal side of Justice Sotomayor, written by a good friend, Sandra Guzman. The magazine has posted excerpts on its web page, including the following:

One evening this past spring, as we prepared dinner for a group of
friends, I asked her for some advice. She listened closely as I relayed
my marital problems. I still recall her words, which I carry in my
heart to this day. She told me that we have been wrongfully taught the
Cinderella fairy tale as a paradigm of what happy relationships are
supposed to be. And when we fall short of that, we suffer for it.
To find happiness in love, she said, we have to make up our own rules.
It’s not easy, but it’s doable. The process may involve unlearning what
we have been taught and then figuring out what makes us happy. There
are all types of relationships and arrangements to choose from. Of
course, the trick is finding a companion who shares those values.

Love is not the only area where Justice Sotomayor has faced her
fears and worked her way through them. Even as recently as April, she
had doubts about her potential rise to the Supreme Court. She had been
on President Clinton’s Supreme Court short list, but no seats became
vacant. When Obama won the White House, the legal world hedged their
bets on the brilliant judge with the impeccable résumé. But weeks
before Obama made public his pick to replace Souter, Sotomayor called
her confidante and good friend [NY attorney Lee] Llambelis, telling her that she wanted
to pull her name from consideration.

“You have to understand that Sonia is a very private person,”
Llambelis explains. “She didn’t want to go through another public
vetting process and a potential public dressing-down by those on the
Republican right who opposed her nomination. Sonia was happy being a
Federal Appeals judge, loved her life in New York and felt fulfilled.
She worried about having less time to spend with her mother, family and
friends, particularly given her mom’s age and potential health
complications.”
Llambelis recalls listening to her friend, whose “I can” mantra was
being drowned out by last-minute uncertainty. She told her to think
beyond herself. “At this point, this is not about you,” Llambelis said
to her. “It’s about little girls and boys, brown and black, who live in
the projects and in poor communities around our nation, who can dream
bigger if you are in the Supreme Court. You cannot back down now.”
Sotomayor promised to think about it overnight. And in the morning, she
woke up with a lighter heart and a bigger purpose.

In her short tenure so far on the court, the justice we have witnessed
is no shrinking violet. She asks tough questions and is not intimidated
by her rookie status. Sotomayor’s charm and confidence surprise very
few people who know her, including the man who nominated her. While
President Obama’s staff was preparing Sotomayor for the confirmation
hearings in a White House office called the War Room, the team covered
all the potentially explosive questions and briefed her on every minute
detail, including how to dress for the cameras. They even advised her
to keep her nails a neutral shade, which she did.
But on the day of the White House reception celebrating her
appointment, Sotomayor asked the president to look at her freshly
manicured nails, holding up her hands to show off her favorite fire
engine–red hue. The president chuckled, saying that she had been warned
against that color.

She sure had, but Sotomayor was not finished. She then pulled her
hair back behind her ears, exposing her red and black semi-hoop
earrings, a beloved accessory among Latinas across America—from the
South Bronx to Houston to East Los Angeles.

Obama joked that she had been briefed on the size of the earrings as
well. Without skipping a beat, Sotomayor replied: “Mr. President, you
have no idea what you’ve unleashed.” He responded, “Justice: I know and
remember it’s a lifetime appointment. And I and no one can take it
back.” And that, as they say, is the final verdict.

In last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives. Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result? As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February. This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas. Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed.

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did. Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

November 10, 2009

The Stupak amendment to the House health reform bill, adopted by a 240 to 194 vote, does not explicitly bar any insurance plan from covering abortion, yet it achieves that effect by barring any plan that accepts federal subsidy dollars at all from including abortion coverage from the insurance exchange through which plans will be sold. Few, if any, insurance plans will have a body of enrollees that does not include at least some receiving premium subsidies. The abortion access issue had been building for months, and finally exploded as a floor vote became imminent. (See my first post from July here; additional background here, here, and here.) The Kaiser Family Foundation has posted helpful Qs and As. Following is an analysis of the final amendment by Jessica Arons, from Wonk Room:

Here’s what the Stupak Amendment does:

1. It effectively bans coverage for most abortions from all public and private health plans in the Exchange:
In addition to prohibiting direct government funding for abortion, it
also prohibits public money from being spent on any plan that covers
abortion even if paid for entirely with private premiums. Therefore, no
plan that covers abortion services can operate in the Exchange unless
its subscribers can afford to pay 100% of their premiums with no
assistance from government “affordability credits.” As the vast
majority of Americans in the Exchange will need to use some of these
credits, it is highly unlikely any plan will want to offer abortion
coverage (unless they decide to use it as a convenient proxy to discriminate against low- and moderate-income Americans who tend to have more health care needs and incur higher costs).

2. It includes only extremely narrow exceptions:
Plans in the Exchange can only cover abortions in the case of rape or
incest or “where a woman suffers from a physical disorder, physical
injury, or physical illness that would, as certified by a physician,
place the woman in danger of death.” Given insurance companies’
dexterity in denying claims, we can predict what they’ll do with that
language. Cases that are excluded: where the health but not the life of
the woman is threatened by the pregnancy, severe fetal abnormalities,
mental illness or anguish that will lead to suicide or self-harm, and
the numerous other reasons women need to have an abortion.

3. It allows for a useless abortion “rider”: Stupak
and his allies claim his Amendment doesn’t ban abortion from the
Exchange because it allows plans to offer and women to purchase extra,
stand-alone insurance known as a rider to cover abortion services.
Hopefully the irony of this is immediately apparent: Stupak wants women
to plan for a completely unexpected event.

4. It allows for discrimination against abortion providers:
Previously, the health care bill included an evenhanded provision that
prohibited discrimination against any health care provider or facility
“because of its willingness or unwillingness to provide, pay for,
provide coverage of, or refer for abortions.” Now, it only protects
those who are unwilling to provide such services.

One in three women will have an abortion in their lifetime. Eighty-seven percent of employer plans offer abortion coverage.
None of that will matter if the Senate takes its cues from the House.
In every other way, this bill will expand access to health care. But
for millions of women, they are about to lose coverage they currently
have and often need.

November 06, 2009

The hiring conference for entry-level law professors, known universally and grimly as the meat market, starts today. Having survived my one year as a candidate and many years on the hiring side of the table, I herewith pass on the following advice from a non-lawyer, but similarly experienced, historian, my friend Claire Potter, aka the Tenured Radical:

...[I]n lieu of giving bad advice to candidates, I thought I would give
advice to those people who were doing the interviewing instead. And
it's a particular kind of advice: how not to look like a fool when
interviewing what we now call a "diversity candidate." Now for the sake
of brevity, let's say the candidate is either a man or a woman
(technically all women are diversity candidates), but may also be
either of color or queer (technically queer people are never diversity
candidates. Unless they are -- for some other reason.) Because these
categories are too internally various, and because in fact there is
surprising overlap in some of the ways you could possibly offend the
people who occupy them, let's call them: Martians. And we'll assume for
the sake of clarity in what follows that "you" are not a Martian, and
that "I" am. Are you ready? Let's begin.

1. Do not tell
irrelevant stories about your friends who are Martians, or that your
daughter decided to come out as a Martian last year and how great you
feel about it. I understand that you are doing this to make us
Martians feel as though we are among friends, and to demonstrate your
absolute lack of Martianophobia or your committed anti-Martianism. I
appreciate that. Really, I do. But you know what? It suggests just the
opposite. It suggests that the Martian in your presence, who is me, is
making you uncomfortable, and that you are bravely overcoming it. We
Martians are used to being in the minority, but it makes us impatient
to have other people remind us of it all the time -- in the name of
pro-Martianism, no less. So we will all do better during the interview
if you stick to scholarship, teaching and what the actual requirements
of the job are.

2. Do not take me to a Martian restaurant for dinner.
First of all, a Martian restaurant that is not on Mars, or in a place
with a significant Martian population, is likely not to be any good. It
will serve Martian food cooked to the taste of the non-Martians who
populate your planet. So I will find this depressing. But furthermore,
it suggests that I, as a Martian, am in danger of feeling alienated on
your planet because I may not be able to access my "culture." Though a
Martian, as a scholar and an intellectual, I probably feel I am a
little more cosmopolitan than that.

3. While we are at
dinner, stay away from topics that betray how invisible the other
Martians on campus or on your planet are to you. Telling me that I
may wish to live on the planet one light year away because it has a
larger Martian population is one way of conveying this, as is:
explaining that retaining single Martians is so difficult because it is
so difficult to meet and other, marriageable, Martians on your planet;
or announcing that, incredibly, there is a Martian Episcopalian church
that serves the entire planet right in your canyon! So even though
there aren't many Martians on campus, there will be a terrific
community for me. On Sundays. (Did I say I was religious? Are you sure?)

4. Admit it if your college does a crappy job of recruiting and serving the needs of Martians.
Most colleges and universities that are not on Mars do -- it's not up
to you to apologize for it. As in (1), don't tell me about the one
Martian who graduated Summa and won the department prize twelve years
ago. And although there may be serious Martian politics on campus,
don't assume that I share your view of what it means to be progressive
on these issues, even -- or especially -- if you are a fellow Martian.

5. Refrain from hinting to me coyly that there is someone I "really need to meet" but not telling me why. This is the most frequent way that people have of dropping a few hairpins that I am a Martian (duh), and this other person is a Martian, but being a person who doesn't really "see" or believe in interplanetary differences, you
aren't going to say the word "Martian" (wink, wink.) Most Martians find
this tiresome. We aren't at a job interview to meet other Martians:
we're there to get a job. And if meeting another Martian on campus is
important to me, I'll tell you so.

6. Try to police your references to Martian stereotypes, whether social or intellectual.
Don't ask me, for example, why I ended up a historian and not a flight
engineer; don't tell me that the special barber I need to cut the hair
around my antennae is in the next town over (we don't all have
antennae, ok?); and don't, for heaven's sake, if I am interviewing for
a Renaissance Literature position, reassure me that the Martian Studies
program is very welcoming. Don't put the chair of Martian Studies on my
schedule without asking me, if I am not interviewing in Martian
Studies, or set up lunch with the one other out Martian to talk about
how I might like to work up a Martian survey course once I get a firm grip on
the courses I am actually being hired to teach.

And last of all
-- if you make any of the above errors, please forget about it and move
on -- don't embarrass all of us by dwelling on your faux pas
and trying to repair the damage. Martians are used to being in the
minority, and we can take care of ourselves, thank you very much.

November 05, 2009

Bottom line: the hearing on S. 1584, the Senate side version of ENDA, was smooth sailing. Both this and the House committee hearing were probably more theater than anything else. Apparently, theater on this topic is not terribly appealing to members of Congress, since only three Senators (committee chair Harkin plus lead sponsor Merkley and Franken) stayed for the full hearing; only one additional Senator (Bennet) attended for part of it. On the House side, most Dems and even a couple of Republicans put in an appearance. Attendance is irrelevant to the end result, though - the hearing stage is now completed, and the committees in both chambers can move to mark-up, hopefully this month.

One difference in the dynamic of the hearing was that the attention paid to the two Republican witnesses - a management side lawyer and a religious broadcaster - was the opposite of what happened in the House hearing. There, committee members seemed interested only in particular points of employment law that arguably could be clarified. In the Senate, those issues were largely ignored, and instead the religious broadcaster drew a number of questions.

Anti-abortion House Dems, whose number is large enough to defeat health reform, have balked at the compromise worked out earlier to avoid the use of federal funds for abortion and are insisting on additional conditions. From the NY Times:

Under the House bill, health plans are neither required nor
forbidden to cover abortions. Under [Rep. Brad] Ellsworth’s proposal, if the
public plan decides to cover abortion, it would have to hire private
contractors to handle money that might be used for that purpose.

Supporters of abortion rights, like the Planned Parenthood Federation of America, said the proposed restrictions went too far. Laurie
Rubiner, vice president of Planned Parenthood, said Mr. Ellsworth’s
proposal would “tip the balance away from women’s access to
reproductive health care. Abortion should not be treated any
differently from any other medical benefit or procedure,” Ms. Rubiner
said. “It is our hope and expectation that the secretary would decide
to include coverage of abortion in the public option.” [The bill calls for the Secretary of HHS to decide the criteria for benefits.]

On the
other hand, Liz Farrar, a spokeswoman for Mr. Ellsworth, said, “We
think the public option will become the pro-life option.”

The
bill stipulates that in every part of the country, there must be at
least one insurance plan that provides coverage of abortions and at
least one that does not.

Douglas D. Johnson, legislative director
of the National Right to Life Committee, said Mr. Ellsworth’s proposal
was “a phony compromise. It serves no purpose except to
assist Speaker Pelosi in peeling votes away from an amendment that
would flatly prohibit the public plan from paying for elective
abortions,” Mr. Johnson said. That amendment was offered by
Representative Bart Stupak, Democrat of Michigan. Mr. Johnson
said Mr. Ellsworth’s proposal authorized “a money-laundering scheme
under which the health secretary would hire an agent to pay abortion
providers.”

The Congressional
Research Service said recently that money received by the government
insurance plan, including premiums, “may be classified as federal funds
or government funds.” But in a memorandum analyzing the House bill, Prof. Laurence H. Tribe of Harvard took issue with that conclusion, which he described as “an exercise in sophistry.” Under
the House bill, he said, abortion services could be financed “only by
special private premiums that are segregated” from other money. Thus,
he concluded, the House bill, “as it currently stands, does not
authorize governmental funding of abortion.”

November 04, 2009

As heartbreaking as it was for the people on the ground and as callous as this may sound, Maine 09 was just another move in the two steps forward, one step back dance that social change movements are. The overall strategy on marriage has been to win in enough states to create a tipping point before seeking a nationwide resolution. Perry v. Schwarzenegger, the big gamble of a case now in federal court in California, might change that strategy, but a loss in any one state won't. Instead, what comes out of Maine are little lessons that are new and big questions that are old.

The little lessons are tactical points: Heavy turn-out is not necessarily a good sign for a minority rights issue. Religiosity isn't everything (Maine is one of the four least religious states in the country). A huge fundraising advantage may be necessary but definitely is not sufficient. And we should trust only automated polling - when people respond to other people instead of to computers, a chunk of them say they will vote to legalize gay marriage, then actually cast their ballots against it.

More importantly, here are three major issues reinforced by the Maine experience as ones that people need to wrap their minds around:

+ Marriage is different. For lots of progressives and lgbt people, marriage is simply the next frontier in an expanding civil rights movement. (Personally I dissent from the view that legalizing marriage is the apex of our goals, but I digress - that's another post.) We visualize it as linear because that is how we conceptualize it. But for a huge number of other Americans (at least if they are over 35), marriage really is different. Really different. Really. Maybe our team should consider ways to acknowledge that feeling without endorsing it.

+ Time may be on our side in the long run, but in the very short run of an election campaign, time feeds doubts about jettisoning the status quo. Both in Maine and California, early polls showed the good guys winning, but that lead evaporated in the run-up to the election. Draining a swamp of fear and prejudice can't be done with a three-month campaign, even a smart one.

+ Lastly, if the post-election surveys that are about to be done (if they haven't begun already) indicate that the homosexuals-indoctrinating-children-in-schools attack was as effective in Maine as it was in California, the gay marriage forces may want to consider an inoculation against that, even if the inoculation is painful. Let parents of young children register with the school if they want to opt their children out of teacher-initiated discussions of gay marriage. Not out of discussions of gay people and their families, but solely and specifically discussions of marriage. Most parents won't do it; most teachers won't be affected. It could make a difference.

Tomorrow at 10 a.m., the Senate Health Education Labor and Pensions (HELP) Committee will conduct a hearing on this year's (trans inclusive) version of ENDA. You can watch it here; Beltway denizens can show up in person at the Dirksen Senate Office Building, Room 430.

The Republican witnesses in the Senate will be the same two who testified on the House side: management side lawyer Camille Olson and Religious Broadcasters Association official Craig Parshall. Representing the Obama administration will be Tom Perez, the head of DoJ's Civil Rights Division. Other Dem witnesses will be Illinois Attorney General Lisa Madigan, University of Colorado Law Professor Helen Norton, a Nike Corporation respresentative, and a Massachusetts police officer.

Behind the scenes, House members are hoping to schedule a mark-up (a session during which Education and Labor Committee members will offer amendments to the bill) soon. At that point, there will be a "chairman's mark" that will include any modifications that the sponsors wish to make before the bill moves to the House floor. The chairman's mark effectively substitutes for the version of the bill as originally introduced. The floor vote on ENDA in the House will probably occur about a week after the mark-up.

November 03, 2009

Midnight sign-off - Things look grim for the No on 1 campaign in Maine, although no one has called the race. There might be a recount. In Washington state, however, the Approve R71 side is winning. It's been a really bad night for the Dems: the only good news for them is that the Republican civil war in NY 23 seems to have handed the district to the Dem candidate, Bill Owens. Right now it's looking like the bad guys won the big ones tonight.

Because Washington state is now totally a vote by mail jurisdiction (with one very small exception in one county), the only results that can be announced tonight for Referendum 71, on whether to validate a civil union-style partner registration law, will be those ballots that are received by today. However, ballots will be counted if they are postmarked by today, so there could be thousands of outstanding ballots.

From the yes on 71 campaign:

Election night trends may not be meaningful unless they show Referendum 71 being approved, in which case, the outcome will be almost certain. This is because King County will be slow to report its ballots. ... [E]lection night returns may not show Referendum 71 being approved, or showing as wide a margin of support as will be reflected in the final results. Washington is a vote-by-mail state. King County, which includes Seattle, is Washington’s most populous county and is expected to strongly favor approving Referendum 71. King County will not have many of its ballots counted until several days after the election. During the 2007 election, a similar dynamic occurred with an education measure supported by the progressive community known as “Simple Majority.” On election night, this measure appeared to be failing by 38,000 votes, but ultimately passed by over 10,000 votes. And in this election, voters seem to be holding onto their ballots longer because they are undecided about the Seattle mayoral race.